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Hanging by a thread: How the online nerdy T-shirt economy exists in an IP world

If big media has legal muscle, why can you buy Link racing Harley Quinn on a shirt?

Willie Clark
- May 6, 2017 12:00 pm UTC

The artists

Of course, these shirt companies can’t exist by themselves. Designs within this industry have to come from somewhere, and that's where the artists come in.

Tanya Kozak (also known as Versiris) has had shirts on sites including The Yetee, SharkRobot, Fangamer, and TeeFury. She originally saw designing as a side gig to her other freelance animation and illustration work. But T-shirts have slowly taken the cake and currently make up around 80 percent of her income. From her perspective, artists tend to be well aware of IP issues and instead worry about another intellectual theft concern: shirt design thieves.

"It's definitely a big issue," Kozak says. "And a lot of us are on the lookout for this stuff all of the time because it doesn't go away. It just keeps going."

The problem of designs being stolen was echoed by other artists. "This is something that plagues the community with great force, and it’s something myself and a numerous amount of other artists have been affected by too many times," designer Spicy Monocle said in an e-mail interview with Ars. "I know many other artists and myself included try to spread the word, but it’s an upward battle." Vincent Trinidad, a full-time T-shirt designer—mentioned this issue bleeds over to consumers, too. He said stolen designs tend to be at a lower resolution, creating an end product that isn't that good.

The issue, however, has developed into more of a gray zone for artists than you’d expect. That’s because when it comes to some of the works being duplicated, many designs depend on using the IPs of other companies.

"Some of it is fair use, but some of it really isn't," Kozak says. "So, it's hard for artists. We’ve thought about making like a big campaign against the sites that are stealing artwork and stuff like that, but then it also brings attention to people who are maybe not, you know, doing something that's completely sound in the copyright laws."

As the ecosystem currently exists, Kozak says she doesn't think anybody will make shirts based on Game of Thrones, for example, following a high-profile crackdown by HBO. (HBO passed on being involved with this article.) Spicy Monocle mentioned parody and fair use are something he keeps in mind, but there is a line: "As someone who has had their work stolen in the past I wouldn’t want to do the same to others."

So while Kozak has had shirts taken down from copyright strikes, today she doesn't get super concerned with how transformative a design might be as long as the T-shirt isn't recycling official artwork or including the name of the IP.

"The further you get away from saying, ‘this is Zelda,’ even though people know it's Zelda, Nintendo basically said keep this on the DL, don't say that it's Zelda and we'll ignore you, basically," Kozak says. (Nintendo also passed on being involved with this article). “If they come and shut me down, what can you do? It's like, ‘OK, you win basically, it's your IP.’ But I feel like T-shirt artists are filling a market that isn't being filled by the actual IP owners."

The law

If artists and websites make up two of the pillars for the Internet T-shirt economy, there's a third party involved, even if it’s not as active of a participant: the original IP holders whose franchises end up represented on a shirt. This is where the law comes in, and Ryan Morrison, founding partner of Morrison/Lee, isn't exactly eating up the idea that their sites are operating on solid legal ground.

"Calling something fair use or parody is saying 'Yes, I'm infringing, but,' because what those two things are, they're not rights, they're defenses," Morrison says. "It means you've infringed, you've absolutely admitted you're infringing, and now what you're saying is it's OK you infringed because it's either fair use or it's parody... it would be very difficult to convince me if I was the judge, even as someone who really enjoys these shirts, that they're actually fair use or parody."

In order to fall under fair use, there are four factors that must be considered, Morrison explained: the purpose and character of the use, the nature of the copyrighted work, the amount taken from the original work, and the effect and use on the potential market. Parody is also tricky, the lawyer says, because it relies on a person's understanding of something as a joke. But if these sites are at times clearly infringing, then why are the bigger companies not continually going after such marketplaces?

Like when considering any lawsuit, there are a handful of general deterrents: the time and cost involved and the possibility of losing and setting precedent. But Morrison believes the silence of big IP boils down to two reasons in this case.

"One, they don't notice this money," Morrison says. "I mean, it's such small fries compared to what Disney and Nintendo are making. Two, the community backlash would be outrageous ... the first thing you learn in law school is you never want to be a case law. A T-shirt site has never been tested before, so none of these big companies want to be the one to test it all the way to a judgment. They'd rather keep the power to take down things as they will, and that power is very much intact right now. They could take down these websites in a millisecond."

While there hasn’t been a high-profile case involving a big pop culture IP and an online T-shirt company yet, there have been similar situations. Mitch Stoltz, senior staff attorney with the Electronic Frontier Foundation, pointed to one court case where T-shirts overall had been tested. And in Kienitz v. Sconnie Nation, LLC, the court ruled in favor of a shirt that used another photographer's photo as the basis for the design.

Stoltz also mentioned one other reason companies may be OK with leaving such sites operational: free advertising.

"This is free marketing for them, and they know it,” Stoltz said. “It’s not really good marketing strategy to go suing your fans and the websites that they like to use.”

Fair use exists as more than a textbook entry for both T-shirt designers and the IPs they adore.

Par for the course, not perfect

While the online T-shirt economy seems to have settled in some sort of delicate balance, there's no telling what changes the future may bring. From the perspective of sites and artists, the DMCA can be used incorrectly right now. Kozak mentioned how such claims can rely on things like keywords on the design, not even taking into account if the design was fair use or not. From an attorney’s perspective, even Morrison echoed that sentiment: “The DMCA is a great system that is abused by assholes,” he says.

When facing such claims, most websites and artists could challenge a DMCA request (or the site could challenge it directly), but such actions leave someone open to the IP holder, further escalating legal claims. "If you are countering my takedown, you're asking me to sue you," Morrison says.

But even complying with DMCA requests today, websites aren’t totally in the clear, either. Stoltz says that the DMCA applies to the digital space specifically, and it probably wouldn't apply to printing and shipping T-shirts. So, even if a website fully complies with the DMCA, there's still the chance it "may or may not be responsible" via regular copyright law. The amount of editorial control a site has over what T-shirts go up also impacts their protection under the DMCA. At first glance, curation would seem to be a safer option when it comes to avoiding copyright concerns, but whether or not sites that do pick which T-shirts are sold are active participants in possible infringement is an "open legal question," according to Stoltz. (As for the artists, “there's no case in which you couldn't sue the artist," Stoltz says.)

While no artist, consumer, or site would probably like the idea of this ecosystem facing some potentially massive restructuring down the line, it's also important to consider the side of the original IP holder. "Everyone is anti-IP, until it's their own thing... you should be allowed to protect your hard work and your creations and things like that," Morrison says. "I do think there's something cool about letting more people create a Harry Potter movie or their own version of Star Wars or whatever it is, but the way the law works right now, yeah, it's certainly in favor of protecting the person who created it. I've yet to hear a compelling argument to say it shouldn't be."

That's not, however, to say that fair use isn't an important part of being able to provide societal commentary. And like the RIPT’s Ingleby noted, that’s what these shirts often do. They allow a wearer to express themselves in a way that perhaps they couldn’t otherwise, and it’s done in a manner that helps similarly minded fans find each other in a subtle, secret-handshake-like way. "The ability to use... the popular characters and stories and scenes and make new art out of them is a really important part of talking back to the popular culture," Stoltz says. "It's very empowering to be able to make new riffs on Game of Thrones that comment on the show or that comment on society using the show. That's what fair use is supposed to allow."

Willie Clark is a writer, editor, photographer, barrel-rider, reliable brave guy, and co-host of the 8 Bit Awesome podcast. You can find his scribings at Polygon, Vice, GamesRadar+, and many other fine dining establishments...or you know, on Twitter.